PESHAWAR: Lack of regulations leads to flawed court sentencing
By Waseem Ahmad Shah
PESHAWAR, Feb 22: Trial courts here have not been determining the percentage and composition of banned ingredients found in seized narcotic substances, local lawyers claimed on Sunday
, as a result of which strange and unusual decisions have been handed down by the courts.
It was learnt that in most of the cases, the trial courts especially the Special Court (Control of Narcotics Substance), have not been ordering the calculation of percentage in seized narcotics and drugs.
However, in certain cases, these courts do order the calculation of percentage of banned narcotics from the total weight of contraband seized (in that particular case) under the Control of Narcotics Substance Act, 1997.
Under Section 3 of the law enacted on July 11, 1997, the federal government has to formulate rules and procedures prescribing the methods by which the percentage in the case of liquid preparations should be calculated. Despite the passage of more than six years, the federal government has yet to formulate the said rules.
A few days ago the special court dismissed an application of a woman from Turkey, Ms Fatima Uskurat, 29, who was accused of smuggling 21 kgs of heroin.
The accused had requested the court to order the calculation of percentage and composition of the seized substances. The said application remained pending before the court for several months, and finally it was dismissed on grounds that the trial was in the final stages.
It was learnt that last year the same court had allowed an application of an accused, Nazeem Khan, following which the percentage was calculated, which ultimately benefited the accused who was given a lenient sentence.
The Anti Narcotics Force had claimed recovery of 35 kgs of heroin from his possession. However, after the calculation of percentage, the banned ingredient in the seized stuff was found to be only seven kgs.
The accused was therefore sentenced to six years imprisonment for the seven kgs of heroin calculated. The high court also upheld that judgment in Sep 2003. Under section 9(c) of the CNSA, the sentence for possession of more than 10 kgs of narcotics is life imprisonment or death.
On the same analogy, the Turkish woman filed the application, but her plea was dismissed. The woman had been arrested at the Peshawar International Airport on March 21, 2003.
An inspector of the Airport Security Force, Irfan Khan, spotted her in the international departure lounge. On search of two bags carried by her, the official found 21 kilograms of heroin.
Her counsel stated that the calculation of percentage would have helped her as normally the banned ingredients like heroin was only 15 to 20 percent of the seized stuff.
He added that the quantity of the seized narcotics would be reduced manifold after the calculation and even if the woman was convicted she could only be sentenced for the actual quantity of heroin in the seized narcotics.
Presently, as the investigation agencies have not been calculating the percentage, therefore an accused has been convicted for the entire consignment, irrespective of the fact whether the banned ingredient is four or five percent of the entire stuff.
A lawyer dealing in narcotics cases has said that under section 35 of the CNSA, the federal government or the provincial government could appoint federal government analyst or provincial government analyst.
The same section stated that till rules are framed, such percentage shall be calculated on the basis that a preparation containing one per cent of a substance means a preparation in which one gram of the substance is available.
Interestingly, some of the courts accept applications for calculation of percentage and the sentences were slapped on accused on the basis of the said calculation. However, majority of the courts still do not accept this provision due to non- framing of the rules.
